specify, whether by the captain or by the owners. It appears to me, however, that the captain is the person who is to gi ve the security, because it is he who is to bring the prize into the port from whence the vessel has sailed. I might mention here several treaties between the states-general and other powers, by which it has been stipulated, that captains and owners of privateers should give security not to do any thing in violation of existing treaties, but as they do not enter into further details, I think that I may safely pass them over.

Thus much being premised, I shall proceed to inquire, whether, if a privateer has made an illegal capture, the damage suffered in consequence thereof is to be repaired by the captain, his securities, or the owners of the capturing vessel, and if to the latter, then to what extent they are liable? On this question, the Dutch lawyers have answered,* “ that if the captain of a privateer ship has wrongfully taken a neutral vessel, and she should be lost in consequence of his having put an ignorant prizemaster on board of her, the party injured may sue, at his pleasure, the owner of the privateer, the captain, his securities and every one of them, until he recovers the whole amount of the damage, even though it should by far exceed the value of the vessel that made the capture." Let us now consider this subject in detail.

A doubt cannot be entertained of the liability of the captain to the whole extent of the damage suffered in consequence of his unlawful capture. He was employed for the purpose of capturing enemies, not neutrals; if, therefore, he has made prize of the latter, he has exceeded his authority, and is consequently liable for all the damage which the neutral has suffered. This principle is clearly sanctioned by the edict of the states-general, of the 1st of April 1622; for, after

teers were directed to give security in $14,000, if the vessel carried more than 150 men, and in half that sum if she carried less. Act of the 9th of July 1798, § 4.-4 Laws U. S. 165.

In Spain, however, according to their prize ordinances of 1779 and 1796, (we have not seen that which was probably made at the beginning of the present war), security is only required from all privateers, without distinction, in 3000 rials de vellon, equal to $1500.

* Consil. Belg. vol. 4. Consil 205.

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directing that security shall be given by the captains of privateers, in the sum of ten thousand florins, that they shall bring their prizes into the port from which they shall have sailed, the law proceeds and says: " reserving, nevertheless, to those who shall have suffered damage by any unlawful act committed by the captain beyond the extent of his commission, their personal action against the said captain and others who shall have occasioned the said damage."

As to the securities, the advocates who subscribed the opinion above mentioned, appear to me to have been mistaken; for, those securities cannot, I think, be made responsible for the whole damage suffered, unless they have bound themselves to that extent; but if they have merely stipulated in a certain fixed sum, as is usual in such cases, they cannot be made liable beyond its amount, nor can they be called upon to answer for any other acts than those for which they have expressly made themselves responsible; as for instance, if they have become bound for the carrying of the prizes into a particular port, and the prizes have been actually carried thither, I conceive that they are discharged, and that it is nothing to them, whether the captures have been lawfully or unlawfully made, unless they have bound themselves for that likewise. But because captains of privateers are in general so poor, that they are not able to make good the damage which they have occasioned, and because the securities are not in general bound beyond a certain sum, which, after being compelled to pay, they may recover back by an action against the owners, it is upon the owners that the whole burthen falls in the end. Let us, therefore, as to them, inquire in the first place, whether they are liable for the whole of the damage suffered, or whether, as in the actio de pauperie and actio noxalis,* they are

The first of these actions was given by the Roman law against the owner of a quadruped, which had done an injury to some person, by kick. ing, biting, &c. which was called pauperiem facere. See on this subject, the title of the Digest, si quadrupes pauperiem fecisse dicatur. Dig. 1. 9. tit. 1.

The actio noxalis lay against the master of a slave for a theft or other injury done or committed by him. Dig. 1. 9. tit. 4. De noxalibus actionibus. In both these cases, the owner or master was discharged by delivering up the quadruped or the slave.

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only bound to the amount of the value of the privateer and her appurtenances?

A question of this kind was formerly brought before the supreme court of Holland. Five Dutch privateers had unlawfully taken a Venetian ship. The owners of the captured vessel at first instituted a suit against the captains of the privateers, and obtained a judgment, by which they were condemned to restore the vessel only, without damages. But as the sentence was not complied with, they then brought an action against the five owners, contending, that they should jointly and severally be condemned not only to restore the vessel, but also to pay damages. The court, by their decree of the 31st of July 1603, condemned the owners jointly and severally, to restore the vessel and her cargo, and if that could not be done, then to pay their appraised value; but the sentence contained an express clause, that execution of it should be made only on the five ships which had made the capture, and that the owners should not be bound beyond their proceeds.

On the strength of this precedent, respectable lawyers have given their opinion to the same effect,* but I cannot concur with them, because I think, that when the owners of a privateer ship put a captain on board of her to make captures, they are bound for the whole of the damage that he may occasion. The master who captures, in consequence of an authority that he has received, is appointed for that particular purpose, and he who appointed him, is by that alone, responsible for every thing, good or bad, that he may do in the execution of his trust. Thus we give the actio institoria† against the proprietor of an inn, who has appointed an innkeeper; if the innkeeper makes any contract, we do not distinguish in what manner or with what intent he did it; and thus also we give the actio exercitoria‡ against the owner of a vessel for the act of the

*Consil. Holland. vol. 3. Consil 221.

† See the Digest, 1. 14. tit. 3. De institoriâ actione.

Dig. 1. 14. tit. 1. De exercitoriâ actione. This title will be found transfated into English, in the American Law Journal, vol. ii. p. 462.

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master, provided the latter acted in the course of his employment as such; if otherwise, the owner is not bound, as Ulpian fully demonstrates.* The appointment is the sole cause why the proprietor of the inn and the owner of the vessel are responsible, if what has been done belonged to the business for which the authority was given, and not to some other one, different from it. He who appointed the captain of a privateer must have known, that his business was to make captures, and that if he should execute it improperly, it would be imputed to the owner for having appointed a dishonest or an unskilful captain. If the master having borrowed money for the repairs of his vessel, applies it to his own use, Ofilius tells us very properly, "that the owner is liable and must impute it to himself that he employed such a person." Wherewith agrees, what the states-general say at the close of their decree of the 22d of October 1627, "that the owners must take care that they employ proper captains.”

If the proprietor of an inn is liable for the acts of the innkeeper, and the owner of the vessel for those of the master, it clearly follows, that they are so to the amount of their whole property, and that they are not discharged by delivering up the inn or the vessel. I do not remember to have seen this doctrine contradicted any where, nor could it be contradicted with any appearance of reason, for nothing is clearer, than that those who are responsible for the acts of others are so to the whole extent of the damage which they may occasion, and therefore the owners of a privateer are bound to make good in toto, the damage suffered by the illegal spoliations of their captain.

The laws which I have already mentioned, afford strong arguments in favour of this principle. The owners of privateer ships are bound to give security, formerly in twelve thousand, now in thirty thousand florins, that no injury shall be done to an ally or neutral. Now, if they are not personally bound to a farther extent than the value of the vessel, why is

* ff. de exercit. act. 1. 1. §. 12.

† Ibid, § 9.

a specific sum required which may, in many instances, greatly exceed that value? If the law had meant that the value of the ship should fix the extent of their responsibility, it should have directed her to be valued, and ordered security to be taken in the precise amount of the valuation. A still stronger argument may be drawn from the Forma of the 28th of July 1705; for, by that law the owners themselves are declared to be liable for the damage which may be suffered by the wrongful acts of the privateer ship, and every thing belonging to her equipment is made subject to a special lien or tacit hypothecation to answer for that damage. Away, then, with the doctrines which are drawn from the Roman laws, on the subject of the actio de pauperie and actio noxalis. These do not apply to the present question, and are founded on quite different principles.

We must therefore conclude, that the supreme court, in the case above mentioned, gave an erroneous sentence; for, if the owners of the privateer ships had appointed the captains who took the Venetian vessels, and had authorized them to make captures, they were bound for the whole, in the same manner as they would have been if they had appointed those captains for mercantile purposes, and had given them authority to make commercial contracts. Perhaps, however, it will be said, that the report does not expressly state, that those five vessels were privateers; but if they were not such, it cannot be said, that the owners gave authority to their captains to make captures, and in that case, I would wish to know, why the court condemned the owners to the restitution of the Venetian ship and cargo, and awarded execution even against the vessels of those owners, and thus condemned them for an act which was not within the authority committed to their captains, which is evidently contrary to the most familiar principles of law. In such a case, therefore, the owners of a vessel cannot be made in any manner liable; for they, indeed, have put the master in their place and stead, but merely as to the business which they have ordered him to transact, and if in the course of that business, the master had committed a